1. Instructor Erlan Bakiev, Ph. D.

2. Chapter 1 Legal Heritage and the Digital Age

3. Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.
What is Law?
What is Law?
It is a set of principles, rules and standards of conduct:
That have general application to the society
That have been developed by an authority for that society
For the violation of which the society imposes a penalty
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What is Law?
The law consists of rules that regulate conduct of individuals, businesses, and other organizations within society
It is intended to protect persons and their property from unwanted interference from others
The law forbids persons from engaging in certain undesirable activities
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Definition of Law
That which must be obeyed and followed by citizens, subject to sanctions or legal consequences
A body of rules of action or conduct prescribed by controlling authority and having binding legal force
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Functions of the Law
Keeping the peace
Shaping moral standards
Promoting social justice
Maintaining the status quo
Facilitating orderly change
Facilitating planning
Providing a basis for compromise
Maximizing individual freedom
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Qualities of the Law
Fairness
The legal system is comprehensive, fair, and democratic
Flexibility
The law evolves and changes along with the norms of society, technology, the growth and expansion of commerce in the country and the world
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8. Schools of Jurisprudential Thought
Natural Law School
Law is based on what is “correct”
Law should be based on morality and ethics
It is the theory or belief that certain rights exist independently of any government's granting of those rights.
Generally, whenever a group rebels against their government and asserts rights that the government hasn't granted them, they are making a claim of natural law.
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9. Schools of Jurisprudential Thought
Historical School
Law is an aggregate of social traditions and customs
Changes in the norms of society will gradually be reflected in the law
The historical school of law believes that societies should base their legal decisions today on the examples of the past.
Precedent would be more important than moral arguments.
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10. Schools of Jurisprudential Thought
Analytical School
Law is shaped by logic
The emphasis is on the logic of the result rather than on how the result is reached
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11. Schools of Jurisprudential Thought
Sociological School
Law is a means of achieving and advancing certain sociological goals
The purpose of law is to shape social behavior
Command School
Law is a set of rules developed, communicated, and enforced by the ruling party
The law changes when the ruling class changes
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12. Schools of Jurisprudential Thought
Critical Legal Studies School
Legal rules as unnecessary
Legal disputes should be circumstantially solved by applying arbitrary rules of what is deemed “fair”
Law and Economics School
Promoting market efficiency should be the central concern of legal decision making
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13. History of American Law
English system of law was adopted as a system of jurisprudence in early American colonies
Acted as a foundation for American judges to develop a common law in America
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English Common Law
Developed by judges who issued their opinions when deciding cases
Principles announced in these cases became precedent for later judges deciding similar cases
English Common Law can be divided into cases decided by different courts
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English Common Law
Law Courts
Uniform system of courts emphasizing form over substance
Granted only monetary damages
Courts of Chancery (equity courts)
Equitable remedies shaped to fit each situation
Merchant Courts
Solved commercial disputes based on trade practices
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16. Sources of Law in the United States
Constitutions
The Constitution is the “supreme law of the land”
Establishes structure of federal government
Legislative branch
Executive branch
Judicial branch
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17. Sources of Law in the United States
Enumerates state powers
Reserves all other powers to states
State have their own constitutions
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18. Sources of Law in the United States
Treaties
The President, with the advice and consent of the Senate, may enter into treaties with foreign governments
Treaties become part of the supreme law of land
Treaties affect international business
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19. Sources of Law in the United States
State Statutes
Statutes are written laws that establish certain courses of conduct that covered parties must adhere to
The Parliament enacts state statutes
State statutes are organized in to code books
These code books constitute codified law
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20. Sources of Law in the United States
State Statutes
State legislatures enact state statutes which are placed in code books or on the Internet
Ordinances
Law enacted by local government bodies
Ordinances are codified
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21. Sources of Law in the United States
Executive orders
Issued by the president and state governors
Example – Prohibiting companies to sell goods and services to an enemy country during war
Power derived from express delegation from legislative branch or implied from constitutional powers
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22. Sources of Law in the United States
Regulations and Orders of Administrative Agencies
Empowered by legislative and executive branches of government
Adopt rules and regulations
Enforce statutes
Hear and decide disputes
Many agencies regulate business
Example – SEC & FTC
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23. Sources of Law in the United States
Judicial decisions
Courts issue judicial decisions
Judicial decisions state the rationale used by the court in reaching that decision
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24. Sources of Law in the United States
The rationale includes:
Interpretations of statutes
Ordinances
Administrative regulations
Announcement of legal principles
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25. Doctrine of Stare Decisis
Based on the common law tradition, past court decisions become precedent for deciding future cases
Lower courts follow the precedent established by higher courts
The courts follow the precedents established by the. Supreme Court decisions
Courts in one jurisdiction are not bound by precedent of another jurisdiction, but may look at it for guidance
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26. Priority of Law in the United States
The Constitution and treaties take precedence over all other laws
Federal statutes take precedence over federal regulations
Valid federal law takes precedence over conflicting state or local law
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27. Priority of Law in the United States
State constitutions rank as the highest state law
State statutes take precedence over state regulations
Valid state law takes precedence over local laws
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Digital Law
The electronic age arrived before new laws were written that were specific for this environment
Courts have applied existing laws to the new digital environment by requiring interpretations and applications
Congress has enacted new federal statutes to regulate the digital environment
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